ABSTRACT: The focus of this paper is to raise some issues that have implications for coherence between the competition law regimes at the multilateral level, in particular the General Agreement on Trade in Services (GATS) obligations, and that existing at the regional level made operative through the existence of FTAs. The particular FTA addressed here is CARICOM under the Revised Treaty of Chaguaramas, although the tentative observations made go beyond this FTA.

ABSTRACT: Regulation of the cable television industry was marked by remarkable periods of deregulation, re-regulation, and re-deregulation during the 1980s and 1990s. Using FCC firm-level survey data spanning 1993 to 2001, we model and econometrically estimate the effect of regulation and competition on cable rates. Our calculations indicate that while regulation lowered rates for small system operators, it raised them for medium and large systems. Meanwhile, competition consistently decreased rates from 5.6 to 8.8 percent, with even larger declines during periods of regulation. Our results suggest that competition is more effective than regulation in containing cable prices.

ABSTRACT: A striking contrast between the two [United States and Europe] becomes
obvious in relation to the so-called abuse of “margin squeeze.” Recent
court cases dealing with very similar situations, show the differences
of approach. In the United States, the Supreme Court decision in linkLine
in 2009 considers that there is no such thing as a stand alone abuse
called “price squeeze” but rather the abuse can be either a refusal to
deal at the wholesale level or predation at the retail level. In Europe
the Court of First Instance (“CFI”), in its recent Deutsche Telekom
case in April 2008, seems to confirm the Commission’s view that margin
squeeze can well be considered a stand-alone antitrust offence. Another
margin squeeze case, Telefonica is currently pending in front of the CFI and it might add further clarification.

These
cases raise some very interesting questions, in particular on the
nature of the abuse and on the correct approach to margin squeeze. My
view, expressed in this short article, is that the differences have
their origin in different policy objectives and, as such, they may both
be appropriate if seen in their particular context.

ABSTRACT: We examine the persistence of monopolies in markets with innovations
when the outcome of research is uncertain. We show
that for low success probabilities of research, the incumbent can
seldom preempt the potential entrant. Then the efficiency effect
outweighs the replacement effect. It is vice versa for high probabilities.
Moreover, the incumbent specializes in “safe” research
and the potential entrant in “risky” research. We also show that
the probability of entry has an inverted U-shape in the success
probability. Since even at the peak entry is rather unlikely, the
persistence of the monopoly is high.

ABSTRACT: The regulation of professional services has been high on the political agenda for years now in Europe. This paper points out the methods of working and the strategies used by the European Commission (Directorate General for Competition) and various national competition authorities to promote deregulation of the professions throughout the European Union. Central to this discussion are the so-called public interest and private interest approaches to regulation. On the one hand, the European Commission seems to have been influenced by developments in particular Member States (bottom-up effects), whereas on the other hand, there have been top-down effects in recent years, at least in some Member States. The European experience is used to study the recent developments in China, and in particular the regulation of lawyers. I find that the argument of information asymmetry may have more relevance in China than in Europe. In addition, the fact that liability rules may not yet be a good alternative for (or supplement to) quality regulation may also make a stronger case for regulation in China. However, economic theory and European practice have taught us that there is a general risk of disproportional regulation.

ABSTRACT: In an incomplete regulation framework the Regulator cannot replicate all the possible outcomes by himself since he has no influence on some firms present in the market. When facing asymmetric information regarding the regulated firm’s costs, it may be better for the Regulator to allow the other competitors to extract a truthful report from her through side-payments in a collusion and therefore the “Collusion-Proofness Principle” may not hold. In fact, by introducing an exogenous number of unregulated competitors, Social Welfare differences seem to favour a Collusion-Allowing equilibrium. However, such result will strongly depend on the relative importance given by the Regulator to the Consumer Surplus.

ABSTRACT: In Bell Atlantic v. Twombly the Supreme Court clarified what plaintiffs must plead for their
complaints to pass muster. It retired the Conley rule that a court should not dismiss a complaint unless
“it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” The new rule is based on whether the complaint states a set of facts that,
assuming their truth, makes it “plausible” that the plaintiff has a claim which would entitle her to relief.
Although Twombly involved an antitrust conspiracy claim, most commentators agree that it modified
general pleading standards for all cases. Lower courts have cited Twombly more than 10,000 times in a
wide range of cases since it came down in May 2007. These cases involve a wide area of claims
including the full gamut of antitrust cases. Defendants now routinely seek to dismiss complaints on the
grounds that they do not state a plausible claim. This note explores what sorts of economic and
statistical evidence help establish that a claim is plausible and what do not.

The news is now official - DOJ has named its top leadership antitrust team. The team includes:

Sharis Arnold Pozen, Chief of Staff and Counsel--Before she came to the Department
in February 2009, Pozen was a partner at Hogan & Hartson's Antitrust, Competition, and
Consumer Protection Group where she worked from1995 to February 2009, on a variety of
antitrust matters in the technology and healthcare industries, and served as Practice Group
Director for the Washington, D.C. office. She has counseled clients on a wide range of
antitrust and consumer protection matters as well as issues pertaining to mergers and
acquisitions, joint ventures, and trade association matters. Prior to joining Hogan &
Hartson, Pozen worked for five years at the Federal Trade Commission (FTC) as an
Attorney Advisor to then Commissioners Varney and Yao, as Assistant to the Director of
the Bureau of Competition, and as staff attorney. Pozen received her B.A. from
Connecticut College in 1986 and her J.D. from Washington University in 1989.

Molly S. Boast, Deputy Assistant Attorney General for Civil Matters--Boast, who is
expected to arrive at the Department in May, is a seasoned antitrust veteran with extensive
antitrust and management experience. Since 2001, she has been a partner at the New York
law firm of Debevoise & Plimpton LLP where she leads the antitrust practice group. From
July 1999 to June 2001, Boast was Senior Deputy Director and Director of the FTC's
Bureau of Competition. During that time, she had management responsibility for merger
and civil nonmerger Commission litigation and investigations, and has experience in
competition issues in the energy and pharmaceuticals industries. Boast also served as the
FTC's representative to the European Community/FTC/Department of Justice Mergers
Working Group. From 1987 to 1999, she worked at the New York law firm of LeBoeuf,
Lamb, Greene & MacRae where she was head of the litigation department and a member of
the firms' Steering Committee. She has served in various positions within the American
Bar Association's Sections of Antitrust and Litigation. Boast received her B.A. in 1970
from the College of William and Mary, her M.S. in 1971 from the Columbia University
School of Journalism, and her J.D. in 1979 from the Columbia University School of Law.

William Cavanaugh Jr., Deputy Assistant Attorney General for Civil
Matters--Cavanaugh, who is expected to arrive at the Department in May, is a highly
experienced and lauded antitrust litigator. Since 1985, Cavanaugh has been with the New
York law firm of Patterson, Belknap Webb & Tyler LLP where he has served as the firm's
Co-Chair, Chair of the Litigation Department and a Litigation Partner since 1991. He has
extensive trial and litigation experience in complex antitrust, patent and commercial
matters. From 1981 to 1985, Cavanaugh was a Litigation Associate handling complex
product liability, insurance coverage and general commercial matters at the New York law
firm of Rivkin Radler LLP. He is a Fellow of the American College of Trial Lawyers, was
named as one of the Best Lawyers in America for Antitrust Law and Commercial
Litigation, and was named as one of New York's "Super Lawyers" for Antitrust Litigation.
He received his B.S. in 1977, from St. John's University and his J.D. in 1980 from St.
John's University School of Law.

Carl Shapiro, Deputy Assistant Attorney General for Economic Analysis--Shapiro,
who arrived at the Department in March, is a leading scholar in economics and brings to
the Department a wealth of experience on issues, including patents, intellectual property
and licensing, network economics, and unilateral effects in mergers. Shapiro is taking a
leave of absence from the University of California at Berkeley, where he is Transamerica
Professor of Business Strategy in the Haas School of Business and a Professor of
Economics. He has been at the Haas School of Business since 1990. Shapiro was
previously the Antitrust Division's Economics Deputy from August 1995 to June 1996,
where he provided economic analysis on a variety of antitrust cases, including Microsoft,
NASDAQ and several mergers. Shapiro had been a Senior Consultant with CRA
International, an economic consulting company. He was vice-chair of the American Bar
Association Antitrust Section's Economics Committee from 1995-1998. Shapiro taught at
the Woodrow Wilson School and the Department of Economics at Princeton University for
10 years. He has published one book, "Information Rules: A Strategic Guide to the
Network Economy," and numerous articles in the areas of industrial organization,
competition policy, patents, network economics and the economics of innovation and
competitive strategy. Shapiro received his Ph.D. in Economics from the Massachusetts
Institute of Technology (MIT) in 1981. He also earned B.S. degrees in mathematics and
economics from MIT as well as an M.A. in mathematics from UC Berkeley.

Philip J. Weiser, Deputy Assistant Attorney General for International, Policy and
Appellate Matters--Weiser, who is expected to arrive at the Department in July, is an
Antitrust Division veteran, and is currently a Professor and Associate Dean for Research at
the University of Colorado, where he has taught since January 1999, in the School of Law
and in the Interdisciplinary Telecommunications Program. During his tenure at the
Department, Weiser will be on a leave of absence from the University of Colorado. Weiser
has also served as a visiting Professor at the New York University School of Law (2008)
and the University of Pennsylvania School of Law (2006). From August 2001 to June
2002, he was a Law and Public Affairs Program Fellow at Princeton University, one of
only six law Professors selected as a scholar-in-residence. Weiser is the Founder and
Executive DirectorofSilicon Flatirons Center for Law, Technology, and Entrepreneurship,
which focuses on spurring interdisciplinary engagement, facilitating community outreach,
and supporting interest in the intersection of technology, policy and business. From
September 1996 to August 1998, Weiser was a Senior Counsel to Joel Klein, Assistant
Attorney General of the Department's Antitrust Division, where he advised Klein on
antitrust policy in the telecommunications industry as well as participated in civil
investigations. He served this fall as the lead agency reviewer of the FTC for the
Presidential Transition Team, serves as the co-Chair of the Colorado Innovation Council,
was a Special Master for the Colorado Public Utilities Commission, and was a Special
Counsel to Cablevision Systems Corporation. Weiser clerked for Justices Byron R. White
(Ret.) and Ruth Bader Ginsburg at the U.S. Supreme Court from September 1995 to
August 1996. He also clerked for Judge David M. Ebel, Tenth Circuit Court of Appeals,
from September 1994 to August 1995. He has published two books and numerous articles
on and has regularly taught in the areas of competition policy and technology law. Weiser
graduated with high honors from Swarthmore College in 1990 and with high honors from
the New York University School of Law in 1994.

Gene Kimmelman, Chief Counsel for Competition Policy and Intergovernmental
Relations--Kimmelman, who arrived at the Department in April, was most recently Vice
President for Federal and International Affairs at Consumers Union (CU). During his
tenure at CU, from 1995 to 2009, he directed CU's federal and international policy
programs. Kimmelman has extensive knowledge of deregulation, market structure and
consumer protection issues. He is a recognized expert in a wide variety of areas, including
telecommunications, Internet/media policy, product liability and antitrust law. He has
represented consumers during the break up of AT&T, consideration of the
Telecommunications Act of 1996, major media and telecommunications mergers, and at
numerous congressional hearings. Prior to his employment at CU, from 1993 to 1995,
Kimmelman served as Chief Counsel and Staff Director for the Antitrust Subcommittee of
the U.S. Senate Judiciary Committee. Previous to that, from 1984 to 1993, he was
Legislative Director for the Consumer Federation of America (CFA) where he directed
their legislative and regulatory programs. In 1981, he began his career as a staff attorney
for Public Citizen's Congress Watch. Kimmelman received his B.A. from Brown
University in 1977 and his J.D. from the University of Virginia in 1981. He studied in
Denmark as a Fulbright Fellow at Copenhagen University's graduate program on the public
sector.

ABSTRACT: In the last decades of the 20th century, David Kennedy and Martti Koskenniemi made the case that the modern structure of international legal argument was characterized by “pragmatism.” Taking this idea as its baseline, this Article’s central argument is that legal pragmatism embodies a dominant style of contemporary legal reasoning, and that as Kennedy and Koskenniemi might have suggested, it is on display in some of the canonical antitrust decisions having an international dimension. The Article also seeks to show that pragmatism’s ostensible triumph is best understood as a contest of three distinctly legal pragmatisms: “eclectic pragmatism,” as evidenced in the work of Thomas Grey and Daniel Farber, “economic pragmatism,” as espoused by Richard Posner, and “experimental pragmatism,” represented in the work of Charles Sabel, William Simon, and Michael Dorf. While these three styles are hardly determinative, they do suggest meaningfully different orientations, as illustrated in an analysis of F. Hoffman LaRoche Ltd. v. Empagran, the U.S. Supreme Court’s most recent extraterritorial antitrust decision. The irony, once one sees the three pragmatisms in action, is that they all fail to offer anything resembling the promise of a truly pragmatist moment of legal decision.

ABSTRACT: By combining, Ticketmaster and Live Nation will create an entertainment giant that:

Sells most of the concert tickets in this country through its contracts with venues

Manages a significant number of the marquee performers in the world or controls their tours

Owns
most of the amphitheatres in the US and owns more 'club' venues, as
well as controlling (through owning/leasing) a large amount of other
clubs and theatres

Owns two of the major resellers of tickets

Owns various sources of competitively sensitive data

Ticketmaster claims that this deal is pro-competitive for everyone:
artists, venues and consumers. It claims by putting everything under
one roof—artists, concert promotion, venues, and ticketing—everyone
will do better. Certainly one can conceive how that might be true. But
at the Senate hearings when asked about the alleged efficiencies,
Ticketmaster could present claims of only $40 million in savings, a
truly paltry amount for a merger combining two companies with billions
in revenues. What, then, is the real incentive for the merger?
Moreover, why should we assume any of those costs savings would benefit
consumers? It is rivalry that leads to the incentive to cut costs and
become more efficient. It is rivalry that forces competitors to pass on
cost savings by reducing prices.

ABSTRACT: Recent decisions - all relying on a stylized example first provided by
the Ortho court - hold that a multi-product seller that uses a bundled
discount in a way that excludes an equally or more efficient competitor
engages in predatory bundling. According to these decisions, a bundle
can be considered predatory even when the price of the bundle exceeds
its cost. The article offers evidence demonstrating that the Ortho's
stylized example and its monopoly leveraging theory are erroneous. The
article further shows that even when a bundle's price excludes more
efficient competitors and even when a component in the bundle is priced
below cost, and thus sold at a loss, it may still have welfare
enhancing effects. The result is that bundles that fail the discount
allocation test and even bundles that fail the Brooke Group test may
still be desirable. The article provides a number of examples from the
airline and telecommunication industries to illustrate that both
exclusionary and below cost bundles can be not only welfare enhancing,
but also very common.

ABSTRACT: This paper analyzes international antitrust enforcement when
multinational firms operate in several markets with antitrust
authorities in each market. We are concerned with how the
sustainability of collusion in one local market is affected by the
existence of collusion in other markets when they are linked by demand
relationships. The interdependence of collusion sustainability across
markets leads to potential externalities in antitrust enforcement
across jurisdictions. As a result, cartel prosecution can have a domino
effect with the desistance of one cartel triggering the internal
break-up of the cartel in the adjacent market. We further find that the
equilibrium in antitrust authorities' enforcement decisions may exhibit
non-linearity due to a free-rider problem as the global economy is more
integrated. We also analyze the equilibrium antitrust enforcement and
compare it with the globally optimal antitrust enforcement policy.

ABSTRACT: This article will show that, in general, allowing merger in small television markets is good for diversity in local news and public affairs. Consequently, the FCC should adopt a presumption in favor of the legality of television mergers in small markets. Intervenors and staff should be able to rebut the presumption in favor of a particular merger by showing that the specific facts of the market containing the proposed merger cause the other public interest goals – competition or localism – to require a different result.

ABSTRACT: Critical Loss is an empirical implementation of the hypothetical
monopolist test for market definition contained in the Department of
Justice and Federal Trade Commission Horizontal Merger Guidelines. As
usually applied, the test accepts the proposed market as relevant for
antitrust analysis whenever the predicted Actual Loss from a small, but
significant and non-transitory price increase is less than the computed
break-even Critical Loss. While the traditional analysis does not posit
a link between the predicted Actual Loss and the break-even Critical
Loss, some theoretical economists claim the two concepts are
mathematically related. They believe that the Critical Loss test will
almost never generate broad market definitions in high margin markets.
We suggest that the critics overstate their case, as they have only
identified a special case modeling structure that has rarely, if ever,
been used in practice and if used, would have very limited
applicability. Standard Critical Loss analysis, carefully applied,
still represents the best tool for market definition.

ABSTRACT: Domestic ordinary courts within the EU Member States are empowered to hear cases concerning damages actions arisen from the infringement of articles 81 and 82 ECT. This article analyzes the evolution of the rules governing this topic and emphasizes civil actions in Competition law, judicial powers, procedural rules and the impact of the EU law and institutions, as well as their cooperation with the national ones.

ABSTRACT: This brief note reviews the judgments on antitrust law delivered by the
U.S. Supreme Court in the last two years and provides a concise
reference to the issues examined in each of them. It also gives a
general overview of the effects that they may have in the stare decisis
doctrine and in antitrust law practice.

ABSTRACT: I discuss and assess the various standards for establishing liability for loyalty discounts offered under a requirement contract. I find that the standard proposed by the Antitrust Modernization Commission is likely to result in many cases of violation that are not caught. The safe harbor defined by the AMC would permit activity that is in fact anticompetitive. I propose instead a structured rule of reason test that relies on consumers' surplus comparisons under the loyalty /requirement practice and the but-for world. The proposed standard does not have a safe harbor based on a price/cost comparison because such comparisons do not generally correspond to consumers' surplus comparisons.

ABSTRACT: Assume that Defendant is a monopolist at the upstream level; that it
produces a product at the downstream level; and that it also sells the
upstream input to downstream competitors. Under certain circumstances,
Defendant can, by reducing its downstream prices or by increasing its
upstream prices, eliminate downstream competitors’ margins and
“squeeze” the downstream competitor out of the downstream market. That
much is uncontroversial. Much more controversial is whether such
conduct should be subject to scrutiny under the antitrust laws.